SUPREME COURT OF NEW JERSEY DOCKET NO. A-71-16 (079277)

Freedom from Religion Foundation, et al.

Petitioners-Appellants

v.

Morris County Board of Chosen Freeholders, et al.

Respondents-Appellees.

Civil Action On Certification from the Superior Court of New Jer-sey, Chancery Division No. SOM-C-12089-15 SAT BELOW: Judge Margaret Goodzeit

BRIEF OF THE BECKET FUND FOR RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS-APPELLEES

HANNAH C. SMITH* LUKE GOODRICH* DIANA M. VERM* THE BECKET FUND FOR

RELIGIOUS LIBERTY 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 hsmith@becketlaw.org *Pro hac vice admission pending

THOMAS A. GENTILE N.J. Attorney ID No. 01336-2005

Counsel for Amicus Curiae WILSON ELSER MOSKOWITZ

EDELMAN & DICKER LLP 200 Campus Drive Florham Park, NJ 07932 Telephone: (973) 735-5785 Facsimile: (973) 624-0808 thomas.gentile@wilso-nelser.com

i

TABLE OF CONTENTS

Page

Table of Authorities .......................................................................... ii

Interest of Amicus Curiae ................................................................. 1

Introduction ....................................................................................... 3

Argument ........................................................................................... 4

I. Exclusion of religious groups from public benefit programs simply because of their religious status violates the Free Exercise Clause under Trinity Lutheran. .................................................................................... 4

II. The government has no compelling interest in denying public benefit grants to churches and religious schools ........................................................................ 13

Conclusion ....................................................................................... 18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

ACLU v. Hendricks, 445 N.J. Super. 452 (2016) ................................................... 10, 17

Agostini v. Felton, 521 U.S. 203 (1997) .............................................................. 14, 15

Aguilar v. Felton, 473 U.S. 402 (1985) .................................................................... 14

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ........................................................................ 12

Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1 (1947) .......................................................................... 9

Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985) .................................................................... 14

Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) ...................................................................... 6

McDaniel v. Paty, 435 U.S. 618 (1978) ...................................................................... 7

Meek v. Pittenger, 421 U.S. 349 (1975) .................................................................... 15

Mitchell v. Helms, 530 U.S. 793 (2000) ........................................................ 15, 16, 17

Resnick v. E. Brunswick Twp. Bd. of Educ., 77 N.J. 88 (1978) ............................................................... 9, 10, 12

iii

State v. Johnson, 166 N.J. 523 (2001) ....................................................................... 5

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) ......................................................... passim

Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481 (1986) .................................................................... 16

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) .................................................................... 16

1

SUPREME COURT OF NEW JERSEY DOCKET NO. A-71-16 (079277)

Freedom from Religion Foundation, et al.,

Petitioners-Appellants,

v.

Morris County Board of Chosen Freeholders, et al.,

Respondents-Appellees.

Civil Action On Certification from the Superior Court of New Jer-sey, Chancery Division No. SOM-C-12089-15 SAT BELOW: Judge Margaret Goodzeit

BRIEF OF THE BECKET FUND FOR RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS-APPELLANTS

INTEREST OF AMICUS CURIAE*

The Becket Fund for Religious Liberty is a nonprofit law firm

dedicated to the free expression of all faiths and the equal partici-

pation of religious people in public life and benefits. It is founded

on a simple but crucial principle: that religious freedom is a funda-

mental human right rooted in the dignity of every human person.

* No party’s counsel authored any part of this brief. No person

other than the amicus curiae contributed money intended to fund the preparation or submission of this brief.

2

To vindicate this principle, Becket has represented agnostics, Bud-

dhists, Christians, Hindus, Jews, Muslims, Santeros, Sikhs, and

Zoroastrians, among others, in lawsuits in New Jersey, around the

country, and around the world. Becket is frequently involved—both

as counsel of record and as amicus curiae—in cases seeking to pre-

serve the freedom of all religious people to pursue their beliefs with-

out excessive government interference. See, e.g., Fraternal Order of

Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir.

1999) (counsel for Plaintiffs); Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, 565 U.S. 171 (2012) (counsel for Peti-

tioner); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)

(counsel for Respondents); Holt v. Hobbs, 135 S. Ct. 853 (2015)

(counsel for Petitioner); Am. Humanist Ass’n v. Matawan-Aberdeen

Reg’l Sch. Dist., 440 N.J. Super. 582 (Law. Div. 2015) (Defendant-

Intervenors); Islamic Soc’y of Basking Ridge v. Twp. of Bernards,

226 F. Supp. 3d 320 (D.N.J. 2016) (amicus curiae).

Becket is concerned, in this case, about attempts to single out

religious groups for disfavored treatment based solely on their reli-

3

gious status, which would not only marginalize and stigmatize re-

ligious groups, but would also threaten their access to a wide vari-

ety of important public benefits.

INTRODUCTION

This case presents one of the first opportunities for a state su-

preme court to interpret the United States Supreme Court’s recent

decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, de-

cided on June 26. Trinity Lutheran rejected a state’s interpretation

of its constitutional provision that would have “categorically dis-

qualif[ied]” churches and other religious groups from government

aid programs. Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012, 2017 (2017). That decision has significant implica-

tions for state provisions around the country—like Article I, Section

3 of the New Jersey Constitution at issue in this case—that might

be interpreted to prevent otherwise neutral government aid from

going to religious groups solely because of their “religious charac-

ter.” Id. at 2021, 2022, 2024. Trinity Lutheran held that the state’s

interpretation constituted discrimination against religious groups

and violated the Free Exercise Clause.

4

FFRF and the ACLU ask this Court to exclude religious organ-

izations from the grant programs at issue based solely on their “re-

ligious character.” Id. at 2021, 2022, 2024. These requests would

constitute “religious status” discrimination under Trinity Lutheran

and the Free Exercise Clause. In applying New Jersey’s constitu-

tion to the programs at issue in Freedom From Religion Foundation

v. Morris County and ACLU v. Hendricks, this Court should inter-

pret its constitution consistent with Trinity Lutheran so as to not

violate the Free Exercise Clause. New Jersey has no valid interest

in such discrimination and therefore these requests must be denied.

Id. at 2019.

ARGUMENT

I.

Exclusion of religious groups from public benefit programs simply because of their religious status violates the Free

Exercise Clause under Trinity Lutheran.

The Supremacy Clause of the United States Constitution

provides the federal constitution is the “supreme law of the land,”

notwithstanding any state laws to the contrary. Thus, under the

doctrine of constitutional avoidance, this Court has long interpreted

New Jersey law to avoid any conflict with federal law. See, e.g.,

5

State v. Johnson, 166 N.J. 523, 543 (2001) (interpreting New Jersey

statute to avoid violating Eighth Amendment of U.S. Constitution).

Here, however, Plaintiffs seek an interpretation of the New Jersey

Constitution that would violate controlling Supreme Court

precedent.

Just three weeks ago, the United States Supreme Court held

that excluding an otherwise eligible religious organization from a

public benefits program solely because of its religious status “is odi-

ous to our Constitution . . . and cannot stand.” Trinity Lutheran,

137 S. Ct. at 2025. The implications of Trinity Lutheran for this case

and ACLU v. Hendricks are clear: government cannot exclude reli-

gious organizations from neutral grant programs without surviving

strict scrutiny under the Free Exercise Clause of the United States

Constitution.

In Trinity Lutheran, Missouri’s Department of Natural Re-

sources offered reimbursement grants to public and private schools,

nonprofit day cares, and other nonprofit entities that resurfaced

their playgrounds using recycled shredded tires. Id. at 2017. But

Missouri interpreted its constitution to require it to “categorically

6

disqualify[]” churches and other religious organizations from its

public benefits program. Id. Even though Trinity Lutheran Learn-

ing Center ranked fifth out of 44 applicants and would have other-

wise received funding, its application was rejected solely because it

is a church. Id. at 2018. The Supreme Court held that the Depart-

ment’s policy “expressly discriminates against otherwise eligible re-

cipients by disqualifying them from a public benefit solely because

of their religious character.” Id. at 2021. Such discrimination “im-

poses a penalty on the free exercise of religion that triggers the most

exacting scrutiny.” Id.

The Court rejected the government’s argument that there was

no serious burden on the free exercise of religion where the state

merely denied a subsidy that it “had no obligation to provide in the

first place,” and did not directly punish any religious act. Trinity

Lutheran, 137 S. Ct. at 2022-23. As the Court explained, “the Free

Exercise Clause protects against ‘indirect coercion or penalties on

the free exercise of religion, not just outright prohibitions.’” Id. at

2022 (quoting Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439, 450 (1988)). Just because a religious institution is free

7

to continue operating as a religious institution, that freedom cannot

come “at the cost of automatic and absolute exclusion from the ben-

efits of a public program for which the [religious organization] is

otherwise fully qualified.” Id. Conditioning the availability of a ben-

efit “upon [a recipient’s] willingness to . . . surrender[] his reli-

giously impelled [status] effectively penalizes the free exercise of

his constitutional liberties.” Id. (quoting McDaniel v. Paty, 435 U.S.

618, 626 (1978) (plurality opinion) (alterations omitted)).

The Court found that Trinity Lutheran was not claiming “any

entitlement to a subsidy,” but rather “a right to participate in a gov-

ernment benefit program without having to disavow its religious

character.” Id. at 2022. Moreover, the “express discrimination” at

issue there was “not the denial of a grant” but instead “the refusal

to allow the Church—solely because it is a church—to compete with

secular organizations for a grant.” Id.

The grant program at issue in this case (and in the accompany-

ing case ACLU v. Hendricks) is governed by Trinity Lutheran. Here,

Morris County’s historic preservation grant program is a generally

available public benefit whose recipients are selected through a

8

competitive grant application process based on secular criteria and

which is open to “all historic sites within the State” without refer-

ence to religious status. Op. at 2. The grants “are limited to preser-

vation of exterior building elements and the buildings’ structural,

mechanical, electrical, and plumbing systems.” Op. at 3. The grants

are released only after the work has been completed. Op. at 5. The

only relevant difference between the historic preservation grant

program and the program in Trinity Lutheran is that Morris

County has done the right thing: It has not excluded religious or-

ganizations merely because of their religious status. See Trinity Lu-

theran, 137 S. Ct. at 2017.

FFRF’s lawsuit attempts to change that—seeking precisely the

result forbidden in Trinity Lutheran. FFRF argues that Article I,

Section 3 of the New Jersey Constitution forbids historic preserva-

tion grants to churches and requests that this Court require a policy

equivalent to Missouri’s “absolute exclusion” of churches. Trinity

Lutheran, 137 S. Ct. at 2022; Op. at 3 (FFRF “contends that . . . the

New Jersey State Constitution prohibits use of government funds .

. . if those funds would be paid to any church, places of worship or

9

ministry”). But the Trinity Lutheran Court characterized that for-

bidden path as a “strict and express policy of denying grants to any

applicant owned or controlled by a church, sect, or other religious

entity.” Id. at 2017. In short, FFRF requests a policy of “No

churches need apply.” Id.

Even before Trinity Lutheran was decided, the court below in

Morris County correctly rejected this argument and interpreted Ar-

ticle I, Section 3 to avoid violating the federal Free Exercise Clause.

It upheld the historic preservation grant program because

“[e]xcluding historical churches from receipt of reimbursements

available to all historical buildings would be tantamount to imper-

missibly withholding of general benefits to certain citizens on the

basis of their religion.” Op. at 12 (citing Everson v. Bd. of Educ. of

Ewing Twp., 330 U.S. 1, 16 (1947)). In so holding, the court inter-

preted Article I, Section 3 in light of this Court’s decision in Resnick

v. East Brunswick Township Board of Education, 77 N.J. 88 (1978).

In Resnick, this Court held that under Article I, Section 3, religious

groups must be permitted to rent space in public school facilities—

10

even if the public space would be used by the religious groups for

religious education. Id. at 103-04.

This analysis continues to be required by Trinity Lutheran.

This Court must consider the Free Exercise implications of its deci-

sions. Here, to withhold the historic preservation grants from only

churches—as FFRF asks this court to do—would be to “impose[] a

penalty on the free exercise of religion” that should be avoided with

the proper constitutional interpretation. Trinity Lutheran, 137

S. Ct. at 2024.

The force of Trinity Lutheran’s holding applies equally in Hen-

dricks.1 In that case, the ACLU has challenged a series of New Jer-

sey state higher education grants given for capital improvements

at both religious and nonreligious schools. ACLU v. Hendricks, 445

N.J. Super. 452, 455 (2016). The grants were awarded based on neu-

tral criteria without reference to religion. Id. at 456-67. Again, the

1 Trinity Lutheran was issued after briefing concluded in ACLU

v. Hendricks. Because Trinity Lutheran has direct application to this court’s decision in Hendricks, Amicus addresses the facts in Hendricks, too.

11

only relevant difference between the higher education grant pro-

gram and the program in Trinity Lutheran is that in Hendricks,

New Jersey did the right thing: it awarded grants to Princeton The-

ological Seminary (the Seminary) and Beth Medrash Govoha (the

Yeshiva) on the same terms as nonreligious schools. But again, like

FFRF, the ACLU attempts to change that—seeking precisely the

result forbidden in Trinity Lutheran.

Before Trinity Lutheran was decided, the Hendricks panel held

that under Resnick, Article I, Section 3 forbids grants to the Semi-

nary and the Yeshiva because of their “sectarian nature.” But Trin-

ity Lutheran rejected precisely that sort of “express discrimination”

based on “religious character.” Trinity Lutheran, 137 S. Ct. at 2021-

22, 2024. To deprive the Seminary and the Yeshiva of the grants

solely because of their “religious character” would be to “impose[] a

penalty” on their belief, “put[ting] them to the choice between being

a [religious organization] and receiving a government benefit.”

Trinity Lutheran, 137 S. Ct. at 2021, 2024. That is precisely what

Trinity Lutheran forbids.

12

Resnick is not to the contrary. It explicitly did not decide “a case

involving some form of public assistance (e.g., scholarships) made

available generally without regard to the sectarian-nonsectarian,

or public-nonpublic nature of the institution benefitted.” Resnick,

77 N.J. at 113. The best interpretation of Resnick is that the grants

in Hendricks constitute a form of generally available public assis-

tance that is permissible for churches under New Jersey’s Consti-

tution. To the extent, however, that Resnick “does require that reli-

gious organizations be singled out” for disfavor, it has been over-

ruled by Trinity Lutheran. Id. at 103-04.2

2 Respondents-Appellees and their amici may attempt to argue

that Trinity Lutheran is limited due to a footnote that was joined by only four Justices. Trinity Lutheran, 137 S. Ct. at 2024 n.3 (“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”) But such a nar-row construction of the Court’s opinion is unwarranted. The foot-note garnered the votes of only four justices and is not part of the Court’s opinion. Such a reading would also be “unreasonable for [the Court’s] cases are ‘governed by general principles, rather than ad hoc improvisations.’” Id. at 2026 (citing Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 25 (2004)) (Gorsuch, J., concurring). Finally, in any event, this case does involve an attempt to discrim-inate “based on religious identity,” and does not involve “religious uses of funding.” Id. at 2024 n.3.

13

II.

The government has no compelling interest in denying public benefit grants to churches and religious schools.

Both FFRF and the ACLU seek to exclude churches and reli-

gious schools from neutrally available public benefit programs ex-

pressly because of their religious character, which “triggers the

most exacting scrutiny.” Trinity Lutheran, 137 S. Ct. at 2021. There

is no compelling interest to justify the exclusion in these cases.

The Supreme Court in Trinity Lutheran explicitly rejected the

argument that excluding churches from a neutral grant program is

justified by anti-establishment concerns. When religious groups are

excluded from a neutral program based only on their religiosity, a

government interest in “nothing more than [a] policy preference for

skating as far as possible from religious establishment concerns . . .

cannot qualify as compelling.” Id. at 2024. Here, in Morris County,

New Jersey’s anti-establishment interest in excluding religious

groups from its grant programs is nil. Historic preservation does

not invoke an anti-establishment interest, as the lower court cor-

rectly reasoned. New Jersey has a “long history of making historic

preservation grants to active houses of worship.” Op. at 6.

14

Any state interest in anti-establishment also would be insuffi-

cient because the grant program does not even come close to violat-

ing the federal Establishment Clause. Even under the Supreme

Court’s most stringent “no aid” decisions in the 1970s—around the

time that Resnick was decided—the inclusion of churches in a his-

torical preservation program would have survived scrutiny. In

those cases, the Court’s basic rationale was that certain types of aid

to religious schools could be “intentionally or inadvertently [used

to] inculcat[e] particularly religious tenets,” could “provid[e] a sub-

sidy to the primary religious mission of the institutions,” or could

reasonably appear to do so. Grand Rapids Sch. Dist. v. Ball, 473

U.S. 373, 385 (1985), overruled by Agostini v. Felton, 521 U.S. 203

(1997); Aguilar v. Felton, 473 U.S. 402 (1985), overruled by Agostini

v. Felton, 521 U.S. 203 (1997).

But even in those cases, the Court acknowledged that “a State

may include church-related schools in programs providing bus

transportation, school lunches, and public health facilities,” be-

cause these are “secular and nonideolgical services unrelated to the

primary, religion-oriented educational function of the sectarian

15

school.” Meek v. Pittenger, 421 U.S. 349, 364 (1975), overruled by

Mitchell v. Helms, 530 U.S. 793 (2000). Historical preservation is

just that. It is a “secular and nonideological service[]” that simply

prevents the county from losing its historic facades.

A fortiori, as Trinity Lutheran confirmed, including churches in

the historic preservation program is not a problem under the

Court’s modern Establishment Clause jurisprudence. The program

makes historic preservation “available to both religious and secular

beneficiaries on a nondiscriminatory basis” and would employ “neu-

tral, secular criteria that neither favor nor disfavor religion.” Agos-

tini, 521 U.S. at 231 (internal quotation marks omitted). Thus, it

would create no “incentive to undertake religious indoctrination”;

and certainly no indoctrination that could be “attributed to the

State.” Id. at 230-31; see also Mitchell, 530 U.S. at 829-30 (plurality

opinion). Furthermore, the court below rightly concluded that di-

version is not at issue in this case. Because the grant funding is

strictly limited to “historic elements of the structures” and “funds

are not released until architects certify the specific work has been

16

performed,” diversion of funds to religious indoctrination is “impos-

sible.” Op. at 5. See Mitchell, 530 U.S. at 855-56 (“It does not follow,

however, that we should treat as constitutionally suspect any form

of secular aid that might conceivably be diverted to a religious

use.”).

Finally, there is no reason to suspect that the facially neutral

criteria in this grant program have the hidden effect of channeling

aid disproportionately to religious entities. See Zelman v. Simmons-

Harris, 536 U.S. 639, 707 (2002) (Souter, J., dissenting) (noting that

“96.6% of current voucher money go[es] to religious schools”). Here,

the vast majority of grant applicants are nonreligious. Thus, this

case is more like the unanimous decision in Witters v. Wash. Dep’t

of Servs. for the Blind, 474 U.S. 481, 488 (1986), where the benefit

went only to one religious entity among many secular ones, rather

than the vouchers in Zelman, where 96.6% went to religious schools

(and the program was still upheld). There is no legitimate anti-es-

tablishment interest that would forbid the government from pre-

serving historical buildings.

17

Likewise in Hendricks, the government’s anti-establishment in-

terest is nil because the money isn’t going directly to religious edu-

cation, but to the general provision of facilities for public use. In

Mitchell v. Helms, the Supreme Court upheld a program whereby

equipment was loaned to schools, including library and technology

materials. 530 U.S. at 802. The program applied equally to public

and private schools, and placed restrictions on the materials going

to private schools, ensuring that all of it was “secular, neutral, and

nonideological,” and that it remained in control of the state. Id. at

802-03 (citation omitted).

That is precisely what is occurring in Hendricks. The grants that

the Yeshiva and the Seminary received go towards a library and

research center building, and technological support, 445 N.J. Super

at 459-60; the grant funds are distributed based on neutral criteria,

see id. at 456-57 (outlining criteria); institutions are required to pro-

vide matching funds to avoid misuse or diversion, id. at 457; and

the Yeshiva and Seminary would be slated to receive less than 1%

of the $1.3 billion the state allocated, and less than 25% of the $52.5

million allocated for private schools, id. at 455-56. These factors

18

place the grants well within the Establishment Clause’s bounda-

ries.

The United States Supreme Court has laid out a clear rule that

governs this case. Denying participation to these churches and re-

ligious schools without a compelling interest violates the Free Ex-

ercise Clause.

CONCLUSION

For the reasons above, the judgment of the Superior Court of

New Jersey, Chancery Division, should be affirmed.

Respectfully submitted.

July 17, 2017 THOMAS A. GENTILE

HANNAH C. SMITH LUKE GOODRICH DIANA M. VERM THE BECKET FUND FOR

RELIGIOUS LIBERTY 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 Hsmith@becketlaw.org

Thomas A. Gentile N.J. Attorney ID No. 01336-2005

Counsel for Amicus Curiae WILSON ELSER MOSKOWITZ

EDELMAN & DICKER LLP 200 Campus Drive Florham Park, NJ 07932 Telephone: (973) 735-5785 Facsimile: (973) 624-0808 thomas.gentile@wilso-nelser.com